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Is HIPAA’s Vow of Silence Being Misinterpreted?

Most Americans who have interacted with doctors and other healthcare providers are quite familiar with the powerful and often cited Health Insurance Portability and Accountability Act, or HIPAA, as it is commonly called. The legislation is designed to protect confidential patient health information and carefully regulate information exchanges throughout the healthcare network. While many appreciate the protection and privacy that comes with this act, some have found that it can be inhibiting in ways that were not intended. A recent New York Times article discusses some of these issues and how many people may have been taking HIPAA codes a little too far at times.

For instance, some families have encountered difficulty in learning about medical complications of loved ones and have even been cut out of the decision making process altogether. The New York Times piece mentions a situation where healthcare providers refused to take a medical history from a caregiver, citing HIPPA as the reason.

It is important to remember that the law does not prohibit most exchanges between family members, caregivers, and approved friends of the patient. Many interpret HIPAA laws on disclosure to be hard and fast rules requiring authorization to speak to anyone but the patient and will use it as an “excuse” to not have a conversation. Rather, HIPPA does not necessarily prohibit discussions between medical care providers and caregivers, family and, in some cases, friends, unless the patient objects. Furthermore, healthcare providers are to use “good judgment” if a patient is incapacitated.

Caregivers may be verbally authorized to disclose information to select individuals at the request of the patient. Although HIPPA gives providers flexibility, it doesn’t actually require them to exercise it. Consequently, many healthcare providers will often request the authorization in writing if the situation permits, in order to ensure that they won’t face regulatory or legal action as a result. Patients and their caregivers may want to consider the appointment of a personal representative, a health care proxy or guardian, or a power of attorney, to simplify the exchange of information in severe situations. In such cases, providers must provide information to the named individual.

Navigating the healthcare realm can be a difficult task and the supposed vow of silence created by HIPPA can make it even tougher. Often times it can be difficult to help manage a loved one’s care and ensure they get the proper treatment. Make sure to clearly communicate your wishes to your healthcare providers to ensure your personal medical information is protected but is also available to those assisting with your care and decision making.

The United Hospital Fund’s Families and Health Care Project has made a useful guide to HIPPA available that can help family members and caregivers navigate HIPPA issues when assisting a loved one. It can be downloaded here.

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